138 



subsection 1 (the Statute of Frauds) against such party unless written objec- 

 tion to its (the confirmation memorandum 's) contents is given within 1 days 

 after it is received." (Emphasis added) 



Whether a person is a "merchant" is dependent upon how individual states apply 

 the following definition contained in Section 2-104(1) of the UCC: 



"^Merchant' means a person who deals in goods of the kind or otherwise 

 by his occupation holds himself out as having knowledge or skill peculiar to 

 the practices or goods involved in the transaction or to whom such knowledge 

 or skill may be attributed by his employment of an agent or broker or other 

 intermediary who by his occupation holds himself out as having such knowl- 

 edge or skill." 



While states adopting this provision have made these definitions a part of their 

 respective state's law, the judicial interpretations of the meaning of the term 

 "merchant" vary. A review of court cases reported in the UCC Case Digest indicates 

 the following: 



▲ States Where Producers are Considered to be Merchants: UCC case law 

 in the following states has found that farmers are merchants: Georgia, Indiana, 

 Mississippi, Missouri, Nebraska, North Carolina, North Dakota and Ohio. 



A States Where Producers are Not Considered to be Merchants: Con- 

 versely, UCC case law in these states has found that farmers are not merchants: 

 Alabama, Arkansas, Kansas, New York, South Dakota, Utah and Washington. 

 However, in two of these states - New York and Washington - the facts involved 

 in a case can determine whether the producer is considered to be a merchant 



▲ States Where Producers May or May Not be Considered to be Mer- 

 chants: UCC case law in these states has yielded mixed verdicts as to whether a 

 producer is considered to be a merchant: Iowa, Illinois, Montana, Texas and 

 Wisconsin. In most circumstances, courts in Texas appear to lean toward finding 

 that the producer is a merchant 



In states where producers are considered to be "merchants," a confirmation 

 memorandum can have the same effect as if both parties signed the contract; in these 

 instances, the confirmation memorandum is the written evidence of the parties' 

 agreement. 



But if the farmer is not considered to be a "merchant" the confirmation 

 memorandum - unsigned by the farmer ~ cannot be used as evidence of the terms 

 of the oral agreement. Thus, the Sample Grain Purchase Confirmation Memoran- 

 dum should never be used without considering all the risks and after consultation 

 with the grain company's attorney. 



